Recently I have been thinking about a twenty-year old Supreme Court case,  and I have the writers of Criminal Minds and the proponents of prop 8 to thank for that. Just to get them out of my head, here are my somewhat disjointed musings on the topic:

In the first season of Criminal Minds, the writers penned an episode ("Riding the Lightning") revolving around a woman going to her execution who had been sentenced to death for the murder of a son she (and ultimately the BAU team) knew well was still alive, as well as involvement in murders committed by her lover. The team find evidence of her innocence.  A large part of the plot involved the team finding out where the son was, and trying to talk the woman into admitting that he was still alive. She refused, because he had been adopted into a good home, and she was afraid that finding out who his mother was would destroy his life. 

This episode annoys the hell out of me, for the simple reason that it is impossible.  Firstly, there is no way that a court will provide relief: the strictures on the production of new evidence found in the AEDPA and state statutes (the case in the episode was in Florida) would mean that it would be thrown into the lap of the governor.  Any governor with with a view to his political life would never pardon a woman who was viewed as complicit in the murders committed by her lover, whether or not she actually was.

But the bigger issue is... even if the BAU team found the son, so what?  The woman was dead set against appeal.  Which makes the whole issue moot due to a 1990 Supreme Court decision, Whitmore v. Arkansas (495 U.S. 149 (1990)).

Whitmore was a case that I followed for a paper I was working on for my Advanced Criminal Procedure class.  (Yes, I know.  I ended up a real propery/land use attorney. Considering I got an A in Advanced Crim Pro that might not have been all that good a career choice. On the other hand, I did also get an A- in Land Use.) It was a fun paper to write, involving a fact set that came straight out of a torrid crime novel, and interesting (and I understand completely that "interesting" is a relative word here) questions of law.

I chose it out of all those available to research because it had the best story.  I am by nature a lover of stories; it is one of the things that most attracted me to law school.  The facts were horrendous, if fascinating: Ronald Gene Simmons killed all fourteen members of his family in various ways, including his granddaughter by his daughter Sheila, and then went into Russellville, killed two people and injured one more. He was one of the worst "family annihilators" in American history.  (Why yes, I am fascinated with serial killers, why do you ask?) He was speedily convicted and sentenced for execution.

At his sentencing, he stated his refusal to appeal either his conviction or his sentencing. Other inmates in Arkansas sought to appeal.  On of the issues raised on appeal was the constituionality of  Arkansas statute which provided for mandatory appeal (the higher courts had to allow appeal of the conviction or sentence by the defendant -- all states are required to do so) rather than automatic appeal (the higher courts automatically reviewed the sentence and/or conviction -- depending upon the state, the procedure at that time by all states except Arkansas).

The Supreme Court decided the case on standing issues.  Although there might be some Constitutional issue about the difference between mandatory and automatic appeal, the only person who had standing to appeal was the defendant himself: the one person who was always allowed to appeal in cases of mandatory appeal, and who was not going to appeal otherwise.  It is a true Catch-22.

Simmons was duly executed, his death warrant signed by the then governor of Arkansas, Bill Clinton. Although I am generally opposed to the death penalty, I am the first to admit that if there is a death penalty, Simmons clearly deserved it.  I did not mourn or regret his execution.


Standing is one of the legal issues (like land use) that most people are bored to tears by but which is in fact extremely important.  Standing determines who gets access to the courts:  limit it too stringently and people with possibly legitimate interests are stranded on the sidelines looking on in frustration as their interests are defended by someone else (or not, in the case of the prop 8 proponents and the state of California.) (One of the small satisfactions of the case winding its way through the courts is that I can read about and discuss standing issues with my friends and their eyes don't glaze over.  Much.)  Don't limit tightly enough, and people with nothing really at stake are clogging up the court system. Determining where to draw that line is tricky. In many cases, it is a matter of statute. 

Standard IANAL(A)* disclaimer: standing, both criminal and civil,  is a complicated subject which I have not studied since law school. My interest here is philosophical, really, since I have been out of the legal arena for close to two decades now.  For professionals, these questions may be much more obvious; for laypeople, which I now consider myself, they are anything but.

What defines an interest?  In the case of a defendant who may have plausible grounds for appeal but who chooses not to pursue it, should others have the right to step in?  If outside considerations rather than their guilt or innocence cause a defendant to refuse appeal (fear for one's family, shame at conviction, despair or desire to avoid having to live on death row) , does refusing to allow others to appeal for them rise to allowing state-assisted suicide?

I ask these not as legal questions (as I said above, I am too far fallen away from the practice of law, and I have not kept up with developments in these areas) but as philosophical ones.  For me, in this case, it boils down to a simple question: Am I my brother's keeper?

The answer I find myself coming back with is no.  I am not.  The world is not perfect, nor fair.  At least theoretically, people could go to their deaths who really should not, by their own choice.**  To do otherwise in the latter case is to violate the most important attribute we have as human beings: free will.  It has taken twenty years, but lately I have been wondering whether the Supreme Court came to the right decision in Whitmore after all.

In the resolution penned by the writers of Criminal Minds  free will triumphs.  The woman convinces the team members to leave her son in peace and allow her to be put to death.  

I just wish that, given that the writers chose to approach the issue of capital punishment, they would have selected a more reasonable legal scenario. The subject deserves it.

* I Am Not A Lawyer (Anymore).
**This would be in fact a very rare scenario. In almost all cases, the question becomes "Is someone going to be executed who should not be, in spite of all their efforts to avoid it?" As I said, Ronald Gene Simmons surely fit the definition of the sort of monster that most people envision the death penalty as being appropriate for, so his refusal to appeal really did not do much other than save him time on death row and the state some money in not having to fight protracted appeals.